Judgment

KHANNA, J. - Four persons, Ibrahim (55), Pradhan of village Noorpur, his son Shaukat (28), brother Mehandi Hasan (40) and Bashir (60) who was Uppradhan of that village were murdered in the course of an occurrence on the night between March 22 and 23, 1971 in village Noorpur at a distance of three miles from police Station Barhapur in district Bijnor. Amir Hussain (31) appellant and 12 others were tried in the court of Sessions Judge Bareilly-Bijnor in connection with that occurrence for various offences under Ss. 147, 148 and 302 read with S. 149 Indian Penal Code. The trial judge acquitted 10 of the accused and convicted the appellant and two others Karimuddin and Mohd. Ibrahim under Section 302, read with Section 34 Indian Penal Code and sentenced each one of them to death. On appeal and reference the Allahabad High Court acquitted Karimuddin and Mohd. Ibrahim by giving them the benefit of doubt. Conviction and sentence of the appellant were maintained. The appellant has come up in appeal to this Court by special leave.

2. The prosecution case is that the appellant who is a Gujar abducted Zaitoon, wife of one Mubarak, a Sagra Muslim, about 18 months before the present occurrence and took her to village Keekar Khajuri, at a distance of about 40 mile from Noorpur. Six months after the abduction, the appellant brought Zaitoon back to village Noorpur. The appellant was then asked by Ibrahim Pradhan deceased to send Zaitoon back to her husband but the appellant declined to do so. The appellant thereafter again went to Keekar Khajuri. About three or four months before the present occurrence the appellant again came with Zaitoon to Noorpur and stated that no one could stop him from bringing Zaitoon to that village and that in case any one did so he would be exterminated. A report about that threat was lodged by Mohd. Ibrahim at the police station on December 3, 1970. After holding out that threat the appellant again went back to Keekar Khajuri.

3. On the night between March 22 and 23, 1971 Ibrahim, his brother Mehandi Hasan and son Shaukat were sleeping in the verandah of their house in village Noorpur on three separate cots. The 13 accused accompanied by one Hasinu and an unknown person then came there. Amir Hussain appellant and Karimuddin were each armed with a Tabal (a kind of axe), two of the accused were armed with pistols, while one accused had a single-barrel gun. The rest of the culprits were armed with lathis. It is stated that the appellant gave a Tabal blow to Ibrahim Pradhan, while Karimuddin gave a blow with Tabal to Mehandi Hasan. The accused armed with pistols and gun fired at Ibrahim Pradhan, Shaukat and Mehandi Hasan. Bashir Uppradhan whose house was nearby also arrived there, but he too was shot at and injured. On hearing hue and cry Khalil (PW 1), Abdul Ghani (PW 2), Abdul Ghafoor Chowkidar (PW 4) and Mohammed Umar (PW 5) arrived there and witnessed the occurrence. At the time of the occurrence a lighted lantern was hanging from a peg in the verandah of Ibrahim. Abdul Ghafoor Chowkidar also set fire to a nearby Chhapar as a result of which there was much light and the eyewitnesses had no difficulty in fixing the identity of the assailants. The culprits after causing the injuries to the four deceased persons went away. All the four injured person died soon after the occurrence. Khalil (PW 1) then went to police station Barhapur and lodged report Ka-1 at 5 a. m.

4. Postmortem examination on the dead bodies was performed by Dr. S. Saran on March 24, 1971. The accused were thereafter arreested and were sent up for trial.

5. At the trial the appellant and the other accused denied the prosecution allegations against them and stated that they had been falsely involved in this case.

6. The trial court as stated above acquitted 10 of the accused, while the High Court further acquitted two of the accused and maintained only the conviction of the appellant.

7. In appeal before us Mr. B. P. Singh on behalf of the appell